Race, Color, National Origin Discrimination

Discrimination is treating someone differently from others because of a particular characteristic. Both state and federal laws prohibit discrimination based upon race, color, or national origin in employment relationships. It is also illegal to retaliate against someone because that person has opposed discrimination, asserted his or her own civil rights or assisted others to do so.

Who is protected against discrimination based on race, color, and national origin?

EVERYONE! Many people believe that minorities have greater rights under the anti-discrimination laws than others, but that is not true. All people fall within the definition of race, color, and national origin and all have equal protection under the law. However, most of the complaints received by the IHRC about race, national origin, or color discrimination come from persons of Hispanic, African-American, or Native American descent. Persons who are discriminated against because of their association with minorities or minority organizations are also covered by the law.

What are some examples of discriminatory employment practices?

Discrimination comes in many forms. Here are some examples:

Harassment - Ethnic and racial slurs should never be permitted in the workplace. Other verbal or physical conduct may be discriminatory if it is directed towards someone because of their race, color, or national origin and if the conduct has the purpose or effect of creating a hostile, intimidating, or offensive work environment. An employer has an affirmative duty to maintain a working environment free of harassment based on color, national origin or race. An employer may be held liable for the acts of its employees if supervisors know (or should have known) about the harassment and failed to take appropriate corrective action. An employer may also be liable for the harassment coming from non-employees if the employer has some legal control over the non-employees, fails to take immediate corrective action, or expects an employee to tolerate the harassment as part of his or her job.

Using personal preferences in employment decisions- Favoring members of a particular culture, skin color, or race in making any employment decision, from hiring to termination.

Stereotyping - Pre-judging a member of a racial or national origin group because of assumptions about the group. Assumptions are often made about:

Intelligence

Punctuality/Reliability

Integrity

Criminality

Cooperativeness

Past experience - Problems in dealing with others of a certain race, color, or national origin are sometimes used to assume all members will present similar problems.

Co-worker or customer preferences - Racial biases and preferences of customers or co-workers cannot be used as a rationale to deny equal employment opportunity.

Relying solely on current employees to find new job applicants - Information transmitted by informal contacts, especially if few minorities are in the current workforce, may not reach qualified minority applicants, thus denying them equal opportunity to compete and be considered for new positions.

Eliminating job candidates because of their arrest records - An arrest is not an indicator of guilt and historically minorities have suffered proportionally more arrests than others. Employers may request information about past convictions, and they can terminate employees for giving false answers. The EEOC urges employers not to use convictions as an absolute bar to employment. Rather, they should consider such factors as age and time of offense, the seriousness and the nature of any violations.

Eliminating candidates because of economic status - Rejection of applicants because of poor credit ratings has an adverse impact on minority groups and may be illegal unless a business reason exists to justify the practice. Inquiries about bankruptcy, car ownership, rental or ownership of a house, and past garnishment of wages may be illegal.

English language skill/testing - Hiring or promoting only people who are fluent in English adversely impacts members of certain ethnic groups, such as Hispanics in Idaho. An employer should require or test for English language skill only when there is a business necessity for workers to use that skill on their jobs. Employers may, however, require employees who are able to speak English to use that language while on the job, if the rules are reasonable and employees have been given notice of when it is permitted, and when it is not permitted, to speak in other languages.

Imposing unnecessary education requirements - Educational requirements should be job-related. If they are merely used as a screening device, they may be illegal because of their adverse impact on members of minority groups.

Imposing unnecessary height/weight requirements - People of Asian and Hispanic descent tend to have smaller statures than people of some other backgrounds. Using minimum height or weight requirements will disproportionately screen them out of jobs. An employer who uses minimum height or weight requirements, therefore, must be able to demonstrate that there is a business necessity for the requirement. Otherwise, the practice is discriminatory.

Requiring an applicant to supply a maiden name or spouse’s name - This is information which is not relevant to a person’s ability to do a job and could be used to discriminate on the basis of national origin.

What are examples of employment practices that might appear to be unfair but are actually legal under the anti-discrimination laws?

Affirmative action-- Many Idaho employers who do business with federal money are required by their contracts with federal agencies to have affirmative action plans. Other employers write voluntary affirmative action plans in order to redress the effects of past discrimination, intended or unintended. The goal of affirmative action is to obtain a workforce representative of the diversity of the labor pool.

Data required for legitimate business purposes-- An employer may ask applicants to voluntarily provide information about race or ethnicity. This information may be used for implementation of affirmative action programs or government reporting or record-keeping requirements. It may also be used for studies to identify and resolve possible problems in the recruitment and testing of members of minority groups. If this information is requested on an application, there should also be a written assurance that it will be maintained separately from application materials and not be a part of the hiring process.

National security-- It is not unlawful to deny employment to any individual who does not fulfill national security requirements as defined by the law.

Indian preference-- It is not illegal under federal law for an employer on or near an Indian reservation to maintain and publicize an employment policy giving preference to Indians living on or near the reservation. This is an exception to the general prohibition against race-based preferences. It was inserted into federal law in recognition of the unique status of tribal and reservation-based activities.

Bona fide occupational qualification (BFOQ)-- An employer may, in very limited circumstances, restrict hiring to members of a particular national origin. The employer must be able to demonstrate that this requirement is an actual qualification for doing the job and is necessary for the normal operation of business. BFOQs are narrowly interpreted. There are no recognized BFOQs for race or color.

"National origin" and "citizenship" are different legal concepts and are treated differently under the law

"National origin" refers to the country from which an individual or her/his forbears came; it does not refer to whether the person is a U.S. citizen. Anti-discrimination laws protect citizens and non-citizens alike from discrimination based on race, national origin, or color. However, the laws enforced by the IHRC do not protect an individual who believes that he/she has been discriminated against because of the particular citizenship held: U.S. citizen or citizen of another country.

The Immigration Reform and Control Act of 1986, which is enforced by the U.S. Department of Justice, does prohibit discrimination based upon citizenship status, unless U.S. citizenship is required by law, regulation, or executive order. Therefore, if individuals who are legally authorized to work in the United States feel they have been discriminated against because of citizenship status, they may contact the U.S. Department of Justice for assistance at the following location: Contact the Commission

What Should You Do If You Think You Are The Victim Of Discrimination?

Explain to an Intake Officer what happened and why you think it was illegal discrimination. Your intake call is confidential. The IHRC will not contact the person you believe discriminated against you unless you give permission or decide to file a formal complaint of discrimination. There is a Spanish speaker on staff.

The Intake Officer will help you decide whether illegal discrimination may have occurred and can assist you in filing an administrative complaint if you decide to take that step. An administrative complaint must be filed within one year of the act of alleged discrimination. There is no filing fee. You do not need a lawyer, although you may hire one if you prefer. The employer named in your complaint will be mailed a copy of your complaint and told by letter that it is illegal to retaliate against you for having filed a complaint. You will receive a copy of the employer’s answer and will be asked to rebut any points made and to provide names of witnesses and evidence in support of your charge.

The administrative complaint process

Mediation will be offeredThe IHRC will assign your case to a Senior Investigator who will attempt to resolve your dispute through mediation. You and the employer will be encouraged to find terms agreeable to both parties for settling the dispute without finding fault on anyone’s part. Some common terms in mediated settlements are: cash payments, letters of reference, or just another chance at a job or promotion. Each case is different. About a quarter of the cases filed with the IHRC are resolved through mediated settlements. They depend upon both parties being flexible and willing to compromise.

InvestigationIf a mediated settlement is not reached, an Investigator will collect information from you, the other side, witnesses, and documents. The Investigator does not take sides. He or she will try to get as true a picture as possible of what happened. A written summary of the evidence is prepared and given to the Commissioners. The nine Commissioners are appointed by the Governor and include representatives of minority groups, industry, and labor. They determine from the written report if probable cause exists to believe that illegal discrimination occurred.

IHRC findings, administrative dismissal and filing in courtIf the Commissioners find "no probable cause" the IHRC will dismiss the administrative case and give you a Notice of Right to Sue. You may then pursue the case in court, despite the IHRC’s finding. If the IHRC finds "probable cause" to believe discrimination has occurred, the Senior Investigator will try again to resolve the case, this time advocating to redress all aspects of the discriminatory act. For conciliation to be successful, both parties must be interested in resolving the dispute without litigation, so compromise and negotiation are required. If acceptable terms for settlement are found, you will close your dispute with the employer. If the dispute cannot be resolved this way, either you or the IHRC can file a case in district court. If you decide to go to court, a lawsuit must be filed within 90 days of the date of administrative dismissal.

The services of the Idaho Human Rights Commission are available to everyone irrespective of disability. Requests for Commission publications in alternate formats will be promptly handled.

RETALIATION

Retaliation against an individual who has engaged in a protected activity is unlawful. "Protected activity" means opposing conduct which a person, in good faith, reasonably believes to be unlawful under the anti-discrimination statutes or participating in Commission proceedings, which are set up for the enforcement of the anti-discrimination statutes.